I agree with the Court that the Interstate Commerce Act grants the Commission broad implied powers to carry out the general purposes outlined in the law. See United States v. Pennsylvania R. Co., 323 U.S. 612, 616, 65 S.Ct. 471, 473, 89 L.ed. 499. But the Commission is without power to invoke vague implications to defeat the Act's purpose or to override its clearly expressed provisions. This, I think, is what the Commission has done in most of the Commission rules which the Court upholds. In my view the rules run counter to the Act in three important respects:

A. The congressionally granted right of motor carriers to choose for themselves whether they would use leased or purchased equipment is practically destoryed by the imposition of burdensome restrictions.

B. The exemption from regulation granted carriers of agricultural products by § 203(b) of Part II of the Act is burdened by restrictive rules that substantially take away the advantages Congress intended to confer by the exemption.

C. Railroads that operate motor vehicles as a part of the business of common carriage are granted special advantages in violation of the express policy of the Act which requires each method of transportation to be left with its inherent advantages.

A. Motor vehicle common carriage had reached an advanced stage when Congress passed the Motor Carrier Act in 1935. [1] Early development of the business was along lines that the carriers found to be advantageous. Some carriers owned their vehicles, while others leased them. The Act did not try to disrupt this system, but left motor carriers free to continue to own or lease equipment in accordance with their best financial judgment. And Congress was content to regulate the common or contract carriers themselves; it made no effort whatever to regulate those who owned the vehicles that were leased to the regulated carriers. Congress was thus talking about the acquisition of equipment by lease as well as by purchase when it provided that the Commission should be without power to restrict the right of carriers to add to their equipment or facilities as the development of their business and the demands of the public required. [2] While this provision is patently not designed to forbid the Commission from limiting the type of vehicles in the interest of safety, [3] the provision just as patently does deprive the Commission of power to forbid the lease and purchase of vehicles which meet the test of safety.

The new rules adopted by the full Commission put burdensome restrictions on the power to lease appropriate vehicles, restrictions which, in my view, go beyond the power of the Commission. These burdensome restrictions had been previously rejected by the Commission's Division V, composed of Commissioners particularly responsible for supervision of motor vehicle affairs as distinguished from supervision of railroad affairs. This record makes plain that enforcement of these burdensome rules will produce violent repercussions in the motor carrier industry; many motor carriers will suffer ruinous losses. The business of leasing vehicles for use by common carriers will be curtailed or perhaps even destoyed. The tendency of the rules is thus to eliminate many small business ventures. It may be, as the Commission seems to think, that the Nation's motor-carrier business can be more efficiently accomplished by a few big companies that own all their equipment, than by a large number of small companies that obtain all or part of their equipment by lease. But if that governmental alteration in our business structure is to be ordained, Congress, not the Commission, should do the ordaining.

B. The farmers of the Nation have for a long time been largely dependent upon reasonably priced motor transportation to get their produce to market. [4] When the Motor Carrier Act was under consideration, there was much apprehension expressed lest regulation deprive farmers of this advantage. [5] To meet this feeling, the bill was amended several times and finally was passed with the agricultural exemption set forth in § 203(b). Except as to certain safety requirements § 203(b) exempts from regulation motor vehicles of farmers and farm cooperatives used for farm purposes; the same exemption is also granted to all motor vehicles while being used to carry agricultural commodities. There can be no doubt that the Commission's new rules will drive many of these carriers of farm products out of business and that many others will be compelled to increase their rates. Section 207.4 of the new rules is rather obviously designed to make this exemption much less valuable. It forbids authorized carriers to lease motor trucks except for terms of at lease 30 days, if the trucks are to be operated by owners or employees of owners. The Commission reported that this rule would completely prohibit trip-leasing. [6] A very large part of all trip-leasing takes place between regulated carriers and truckers who are exempt because they carry farm products. An illustration can be found in the carriage of Florida citrus fruits. On delivering fruit in northern states the practice of these exempt truckers has been to lease their motor vehicles to regulated carriers for the transportation of goods to Florida. Unless vehicles that bring citrus fruits north can make such arrangements they must go back to Florida empty. 'Empty or partially loaded trucks on return trips may well drive the enterprise to the wall.' United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 488, 62 S.Ct. 722, 729, 86 L.Ed. 971. The Commission's rules make it impossible for these exempt carriers of agricultural products to get the advantage of a lease for a return haul. The result is destruction for a large part of that business.

The reason the Commission has adopted a rule so destructive of the agricultural exemption Congress granted is apparent from a colloquy which took place in the District Court. The attorney for the Commission was asked if it was wasteful for a truck to go back to Florida empty. With commendable candor he said: 'It does seem uneconomical in requiring it to go back empty, but they can-The difficulty comes, I think, in letting it come up in the first place.' In other words the 'difficulty comes' because Congress agreed to exempt these farm products. This congressionally created 'difficulty' is being cleared up by the Commission. Its new rules against trip-leasing will force these agriultural carriers to raise their rates high enough to frustrate purposes underlying the agricultural exemption. [7]

C. The Commission has exempted railroads and express companies that carry goods for hire in motor vehicles from all of the regulations except the provisions of § 207.4(c) and (d), which latter two provisions relate to inspection and identification of equipment. It is rather interesting that while the full Commission granted the railroads this amazing exemption, Division V, the Motor Carrier Division of the Commission, refused to allow it. The Commission at the same time refused to exempt from its new rules motor carriers whose operations were shown to be substantially identical with those performed by railroad and express carriers which the Commission left free from the burdens of the rules. Since the railroads and the independent motor carriers are in competition, it is not strange to find the railroads arguing here that while the railroads' exemption should be sustained, the new rules should be applied in all their vigor to the independent motor carriers. I know of no power which the Commission has to allow railroads which engage in the motor carrier business exemptions and preferences which are denied completely motor carriers not owned by railroads.

The Commission's rules as a whole fashion broad new national transportation policies different from and in conflict with those Congress adopted after mature consideration. I would reverse the judgments of the District Courts and direct that the rules be set aside as beyond the Commission's authority.

Transportation of Selected Agricultural Commodities to Leading Markets by Rail and Motor Truck, 1939-1950, United States Department of Agriculture, Bureau of Agricultural Economics (June 1951), Table 1, p. 10.

^5 For illustration, Congressman Walter Pierce of Oregon said, 'Mr. Chairman, I have watched the debate very closely. I wonder why this bill? I am a farmer, living 300 miles from tidewater. I raise wheat and stock. The only relief I have ever seen in my 40 years on that farm from the terrific confiscatory railroad freight rates was when the trucks came.

'The camel is certainly getting his nose into the tent, and this means the death of the motor transportation which the farmer has had and which has been the only relief that has come to him from the previous excessive railroad rates.' 79 Cong.Rec. 12216, 12217; see also 12197-12198.

^6 Trip leases can be made by motor carriers specifically exempted from the rules by the Commission-railroad motor carriers, express company motor carriers, and the Allied Van Lines.

^7 This statutory agricultural exemption reflects a congressional belief that '* * * it would be better for the Congress to decide what should be exempted rather than to leave it in the hands of the Commission that might nullify the entire intentions of Congress * * *.' 79 Cong.Rec. 12225.